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April 08, 2003

Supremes Get it Right on CrossBurning

Sam Heldman argues that yesterday's cross burning decision is a mess.

Actually, on this one the core opinion -- an odd configuration of O'Connor, Rehnquist, Stevens and Breyer -- got the decision correct.

At stake in the case were really two examples of cross-burning. In the first, a cross was burned on the lawn of a black family. In the second, a cross was burned ritually at a KKK rally on private property with no singular target other than black people in general. The question was whether both were inherently burned with "the intent of intimidating any person or group of persons", a practice banned under Virginia law.

Souter, Kennedy and Ginburg in dissent took the absolutist position that a law singling out cross-burning is a "content based" speech distinction that is unconstitutional on its face. There position was that intent to intimidate needs to be proved in all cases, so while cross burning is good evidence of such intent, it cannot be assumed to be so under law without qualification or singled out for punishment different from other forms of intimidation.

The main plurality took a position that "instead of prohibiting all intimidating messages, Virginia may choose to regulate this subset of intimidating messages in light of cross burning's long and pernicious history as a signal of impending violence." The state need not penalize all possibly intimidating speech to reach a form of symbolic speech that is tied to such a uniquely corrosive history in the US.

I think this is a correct position to avoid forcing states to pass over-inclusive legislation that might overly restrict potentially intimidating speech just to reach something like cross-burning that in all but a few circumstances clearly is a signal of impending violence. The absolutist position of the minority ironically might lead to more speech-restrictive legislation that, while "content neutral", suppressed robust and even conflictual speech. Yes, there is a danger of this being extended to symbolic speech that covers other forms of dissent, but that's where the second part of the core decision is important.

While the Supreme Court upheld the right to single out cross-burning, it struck down a provision in the Virginia law that said cross-burning unto itself demonstrated intent to intimidate. While it's pretty obvious that burning a cross on a black person's lawn is meant to intimidate, the ritual cross-burning in the field in the case is more problematic. While it could reasonably mean that an imminent threat was being made to blacks or others in the community, it could be just an affirmation of racist views by people who are nasty but clearly have no immediate violent intent.

In dissent in the opposite direction from the speech absolutists, Thomas joined by Scalia argued that given the history of cross-burning, it has no meaning that does not promise violence so an absolute ban on it does not effect any useful speech in society.

While I have some sympathy for that argument, I think that the evocation of violence has an expressive meaning -- in showing political determination that violent imagery is associated with unfortunately -- that is separate from the immediate promise of violence. Only the latter should be prosecuted, so whether someone burns a cross, waves a swastika, flashes a picture of soldiers with an American flag, or waves the hammer and sickle, a jury has to consider whether the symbolic display of violence is tied to any real specific intent or threat to commit violence in some immediate space of time.

This was a tough speech issue and the odd plurality lineup got the issues right.

Posted by Nathan at April 8, 2003 02:23 PM

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I think that I agree with everything you say, Nathan. If this is the law -- that a state can lawfully ban cross-burning-with-intent-to-intimidate, but the intent cannot be inferred solely from the cross-burning itself in every instance (no matter where and when it takes place) -- I think that's a pretty reasonable middle ground for the Court to have taken. But what still strikes me as a mess about the Supreme Court's disposition is the "what next?" part of it -- what happens to the cases of these three defendants, in terms of whether they can be retried, or whether their convictions will stand without even allowing them a retrial, and why. It's hard for me to figure that out, given the lack of a majority opinion on that point. Maybe I'm just missing something that's clear to other people.

Posted by: Sam Heldman at April 8, 2003 03:01 PM

Not to be too cynical Sam, but as to the individual defendants, there is a rich tradition of the Supreme Court leaving procedural messes for such people. Which is hardly surprising given that the rules have changed in the middle of the process and it's always inherently hard to retry cases with complete fairness.

I do recommend that people read Thomas's dissent. It's quite striking and it was almost good enough to convince me to support the absolutist banning of cross burning as just inherently devoid of speech value. But in the end, the middle ground seems far more on point.

Posted by: Nathan Newman at April 8, 2003 03:32 PM

you cant burn a cross...
yet you can burn and spit on the american flag.

Posted by: Zach at April 8, 2003 03:46 PM

Yes Zach, because burning a flag does not involve hurting or threatening to hurt anyone else. The point of both the flag burning cases and the cross burning case above is that causing even intense discomfort to another with mere speech or symbols is protected under the 1st Amendment.

Now if you burned a flag with an obvious intent to use it to burn something else that you did not own, you still can be prosecuted for arson.

Although Scalia felt your pain on this point in his dissent.

Posted by: Nathan Newman at April 8, 2003 04:43 PM

Mr. Newman, I'm impressed! I agree with almost all of what you say. Cross-burning with the intent to intimidate is a hate crime and now an illeagal action. The KKK and other hate groups give just as mucha bad name to the right as the eco-terrorists like Earth-Liberation Front.

Responding to what zach said, however distasteful and traitorous I feel people who burn American flags are, I must agree with you that it is protected by 1st amendment rights unless it threatens physical assault. -Respectfully
-Robert S. Morgan

Posted by: Robert S. Morgan at April 8, 2003 08:38 PM

I respect your opinion Nathan. I still have a bad feeling about this, that this may be the "foot in the door" precedent that the right wing of the court has been looking for as the excuse to outlaw other forms of free speech. But I hope you are right.

Posted by: Z at April 9, 2003 02:50 AM

The US military regularly burn US flags that have been damaged. Of course, they do it discreetly, and have a procedure for it.
I'm not sure what Thomas might mean by "useful speech", if he used that term. Is only "useful" speech protected under the First Amendment? A lot of people will have to shut up quick.

Posted by: John Isbell at April 12, 2003 10:02 PM

>>but the intent cannot be inferred solely from the cross-burning itself in every instance (no matter where and when it takes place)

I know I'm coming in here late, but wait a minute - I really don't think anyone can argue - and the Court went into a lengthy history of the circumstances of the KKK and cross-burning - that burning a cross on the private property of a black family in the south in the middle of the night could be intended for anything other than intimidation. I think that the Court ruled correctly - where the burning cross was used strictly on the private property of members of the KKK as part of their "ritual", that the case can be easily made that there is no prima facia evidence of "intent to intimidate" - but when done on the private property of another, especially when that other is a member of a group that that symbol was used to signify terror and subjugation, that a presumption of "intent to intimidate" can be made.
Others have made reference to this ruling providing bad "precedent" so as to attack the religious rituals of various unnamed religions, but, for the life of me, I can't think of any "religion" that includes part of it's worship or rituals the intimidation of others that should be worthy of protection. The KKK and cross-burning is a special historical circumstance which probably doesn't have many if at all parallels such as this ruling would affect, but the ruling correctly differentiated between threatening and non-threatening use of the "religious" symbol that I don't see how anyone could entertain the idea that this is bad "precedent" of some form.

Posted by: Andy X at April 15, 2003 03:27 PM

I have added my thoughts about Black at Silver Rights. As a minority person who grew up in the South and a civil libertarian, reaching a decision was quite a balancing act.

Posted by: Mac Diva at April 16, 2003 12:01 AM

Suppose someone just wants to burn a cross in protest of Christians sticking the darned things all over the place.

Suppose I want to burn one of the darned things in a protest against religion.

Seems to me, if I can burn a copy of the US flag in protest, then I should be able to burn a religious icon in protest as well, n'est ce pas?

Posted by: Mister Thorne at April 28, 2003 10:10 PM

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